I am Michael Waldman, President of the Brennan Center for Justice. My new book is The Supermajority: How the Supreme Court Divided America. Ask me anything about Supreme Court overreach and what we can do to fix this broken system.

What do “shall make no law” and “shall not be infringed” really mean? And why did they use such strong language if they didn’t really mean it?

“Shall make no law” is from the First Amendment — and there are two centuries of debate over what that means! The second quote is from the Second Amendment, which talks about the “well regulated militia, being necessary to the security of a free state,” as why “the right of the people to keep and bear arms, shall not be infringed.” (Ignore the commas — the founders believed in freedom to punctuate.) The militias were what they were talking about — white men ages 16 to 60 were required to join and required to own a gun for military service. Bottom line is we’ve had guns and we’ve had gun regulations since the Constitution was ratified. Freedom and public safety always went hand in hand.

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What’s damaging is when the Court is extreme and ideological. And this supermajority of six justices most definitely is. Bruen, which came down last year, was the most sweeping Second Amendment ruling ever. It said in effect we cannot consider public safety at all when asking if a gun law is constitutional – only “history and tradition” matter. By that, Justice Clarence Thomas meant, in order for a law to stand, there must be a similar law from the colonial and founding era. So he and the others struck down a law from 1911 restricting the carrying of guns in crowded New York subways and elsewhere, all because supposedly that’s how the guys in powdered wigs did it over two centuries ago. (He even got the history wrong!) That will be bad, bad, bad for public safety.

You forgot to answer they’re other questions.

Why do I believe originalism is flawed?

Lots of reasons! Take a deep breath. (And read The Supermajority.) First, the use of history is often wrong or manipulated. The Founders disagreed sharply among themselves. More,the Constitution was meant to be a broad charter for a growing country. As Chief Justice John Marshall put it, “It is a Constitution we are expounding,” not just a statute. Most of all though, it explicitly would turn the clock back. “Originalism” says we should be governed in 2023 by the social values of property-owning white men in the 1700s or 1800s. A time when women could not vote, and when Black people were enslaved. The country has changed since then, thank heavens. The Constitution and our interpretation of it should reflect that changing country. Let’s be clear: these justices aren’t conservative because they are originalist; they are originalist because they think it will produce desired conservative rulings. They fly a flag of convenience.

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Video response here: https://youtu.be/gMf7VvIqRWU

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Roe and Casey protected reproductive rights for a half century. Millions of women depended on that protection. The authors of Dobbs said they were just letting the political process work. But many states had laws already on the books, some from decades before Roe was decided, that would suddenly ban abortion. And the states that had already enacted the most extreme laws were also the states where gerrymandering has produced the most unrepresentative legislative maps. Texas not only had the earliest abortion ban, it also had the most extreme gerrymandering, as well as among the country’s harshest voting laws.

That said, we are seeing the political process respond in many places, such as with ballot measure wins in Michigan and Kansas. Now abortion opponents are responding by trying to make it harder for voters to pass such measures (as in Ohio).

There’s not a lot of consistency on this, in any case: the day before Alito’s homage to the democratic process in Dobbs, the Bruen case struck down potentially hundreds of laws, also passed through the democratic process. There, the dissenters decried judicial overreach.

The Brennan Center has argued that Supreme Court justices should serve for 18-year terms, rather than indefinitely, and that Congress could implement this change by statute. This seems like a common-sense reform, but wouldn't it require a constitutional amendment? How would a law passed by Congress overcome Article III's pronouncement that federal "judges, both of the supreme and inferior courts, shall hold their offices during good behaviour"?

Congress has the power to create “senior judges,” and that includes “senior justices.” This framework has been in place for more than a century and justices have done this since 1937. David Souter, for example, left SCOTUS years ago but still sometimes hears federal cases. Under the plan we advocate, Congress would create a schedule by which justices assume senior status automatically after 18 years of active service on the Court.

Does it matter that Justice Souter voluntarily took senior status? It seems to me that this question depends on how one understands a justice's "office" to be within the meaning of Article III. Obviously that's a question on which reasonable minds can differ, but the better interpretation seems to be that the "office" comprises an active, non-senior seat on the Court. You appear to disagree. Can you explain why the "office" includes being compelled to adopt senior status?

(Also, to the extent Congress enacts term limits, do you think it likely that this Court would uphold such a statute if it were challenged?)

Here’s what my colleague Alicia Bannon, our expert on this, has to say: The Supreme Court has previously ruled that senior judges continue to hold office. Otherwise, it would be unconstitutional for Souter to continue to hear lower court cases after he retired from active service on the Supreme Court. It’s true this reform gives justices less discretion over when they take senior status, but it’s Congress, not the justices themselves, that holds the power to define the contours of justices’ duties.

The same supermajority power that resulted int he events of June 2022 could be used in reverse by a future Democrat supermajority, which disincentivizes changing the system. How do you convince both sides to give up that kind of power at the same time?

Liberals should not simply pine for a bench of progressive versions of the extreme conservative Samuel Alito, who often sounds just like Mark Ravenhead in a robe. (Succession spoiler alert!) We want the Court to protect rights and democracy, but above all, the Court should know its place in our democratic system. The most important court in which to win lasting constitutional change is the court of public opinion.

That a small group of people has seized so much power and is wielding it so abruptly, energetically, and unwisely, poses a crisis for American democracy.

Do you disbelieve the Supreme Court was meant in part to be a check on "democracy?" For example, you claim the Supreme Court "loosened gun safety laws" when the Bill of Rights is absolutist in grammar. The Bill of Rights may theoretically be changed by a 2/3rds majority, but even then the 9th Amendment explicitly claims a person is a retainer of rights - suggesting that philosophically not even a Constitutional Convention can undo what the Bill of Rights protects.

You are articulating one approach to the Second Amendment. But it is a new one. The Supreme Court never said that the amendment protects an individual right to gun ownership for self-defense until 2008 (in D.C. v. Heller). During the 219 years before that, we had guns and gun safety laws, and public safety was always at issue.

The consensus was articulated by the rock-ribbed conservative chief justice Warren Burger, appointed by Richard Nixon, talking in 1990 about the idea that the amendment protected individual gun ownership. “This has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.” What changed that was not a better understanding of “grammar,” but a skilled constitutional campaign by the NRA and other gun groups to win a change in what people thought the Constitution meant.

9-0 is definitely a super majority. Is this also a decision that was wrongly decided? Do you think the courts are the only branch overreaching? Especially when many of the Supreme Court decisions in the last decade have been reigning in the power of other branches and agencies. Are you in favor of a government run exclusively by congress?

I don’t know which 9-0 case you’re referring to! The Court should not make it harder for democratically accountable lawmakers to do their jobs (as when it struck down a century of campaign finance laws in Citizens United or gutted the vital civil rights law the Voting Rights Act). I’m not for a government run exclusively by Congress, but our system from the beginning has depended on democratically elected officials having the main role.

Plz expalin 1. When SC overreached? 2. How to fix it without judicial
system's harm?

I think the key rulings last June overreached, as I describe in my book The Supermajority. The conservative justices crammed three decades of social change into three days. I’ve talked about Dobbs and Bruen. The third big case was West Virginia v. EPA, which sharply curbed the power of regulatory agencies to protect the environment and public health. The regulation at issue was a key climate change plan from the EPA. The Court said that even if Congress had passed a law that authorized an agency to act, it could not do so if it was a “major question.”

In other words, if right wing judges don’t like a rule, they can block it by simply deeming it a “major question.”Next term the Court will hear other cases that will make it harder for the government to act. All this reflects the political push from libertarians who have longed for a way to curb government regulation by judges rather than by persuading Congress to repeal environmental laws. “Originalists” and “textualists” like to use dictionaries: that’s a dictionary example of “overreaching.”

How does this recent state of affairs compare to the history of the Supreme Court? Have there been similar issues in the courts history or is this entirely new?

Most of the time the Court hugs the middle. It reflects the consensus of the country at the time (or at least the political system). A few times, though, the Court has been extreme, or partisan, or unduly activist. When that happens, there has been a fierce backlash. We saw that after the Dred Scott ruling in 1857, which said Congress could not restrict the spread of slavery in the North. Anger at that propelled Abraham Lincoln to the White House. We saw it in the early 20th century when the Court saw its role as stopping government from protecting workers, women, and public safety in the industrial era. And we are still living through the backlash to the Warren Court, which made major rulings that advanced equality but which provoked decades of conservative organizing. Bottom line: it’s totally appropriate for people to argue about, fight about, vote about the Court. That’s “history and tradition.”

Haven't there also been times when the Court has led public opinion, such as in Brown v. Board? That decision (like many issued by the Warren Court, as you note) also engendered fierce backlash. It seems that the Court deviating from public opinion can sometimes be a good thing, though we may not always be able to distinguish good deviations from bad without the benefit of hindsight.

Is there a way to distinguish good deviations from bad?

Actually, as my book The Supermajority notes, Brown was broadly popular. Just days after the ruling, 58 percent of respondents and 80 percent of those outside the South told Gallup they supported Brown. It was an example of the political system being frozen — segregationists would not allow democracy to flourish, including by disenfranchising Blacks and poor whites. (And the ruling, as powerful as it was, did not really end segregation. That happened after the protests of the civil rights movement and through new laws over the next decade.) We need that kind of action when the political process is frozen and democracy cannot work (as in the “one person, one vote” cases about malapportionment). But that charge to stand up for rights should not become an excuse for simply overriding the will of the people and their elected representatives. Not every case is Brown v. Board of Education.

Why do some members of the Supreme Court argue that the shadow docket concerns are overstated? Do you agree or no?

Because they like using the shadow docket to make big conservative rulings without having to explain themselves! The spooky phrase refers to rulings done through orders and other actions short of a fully briefed decision. The Court effectively allowed Texas to ban abortion that way, in a one-paragraph unsigned order. Sonia Sotomayor called the action “stunning.” John Roberts warned that “the statutory scheme before the Court is not only unusual, but unprecedented.”

Samuel Alito didn’t like that at all. “The catchy and sinister term ‘shadow docket’ has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution,” he said in a speech. Methinks he doth protest too much.

Do you talk about expansion of the court in the book?

The first third of The Supermajority tells the history of how we got here. In the 1930s, when one-third of the country was unemployed during the Great Depression, a reactionary Supreme Court struck down much of the New Deal. Critics called them the “nine old men.” FDR warned that their jurisprudence would bring us back to the “horse and buggy days.” They were considering striking down Social Security and the labor laws. So FDR proposed expanding the Court from 9 to 15 justices, provoking a gigantic controversy and a massive pushback even from other Democrats. Eventually one justice reversed his position and the Court started to uphold the New Deal — it was called “the switch in time that saved nine.” This should give us a lot of pause when it comes to modern proposals to simply expand the Court. FDR had just won the biggest electoral victory ever, and 70% of the Senate were Democrats, but he still found a hidden and passionate opposition.

How do you think the Supreme Court will come out regarding recent attempts by States to repeal DEI initiatives? Will they echo the Court’s decision regarding affirmative action? If so, what effects can we expect?

I don’t know. (Make no mistake, I think so many of these proposed laws are really egregious.) But we can expect that the Court’s upcoming ruling on affirmative action will likely include a lot of rhetoric going far beyond the issue of university admissions. That kind of quotable language will ring loudly in all kinds of other matters and topics.

Thanks for being here. What do you think SCOTUS will do with the independent state legislature case out of North Carolina?

Do you have a few hours? This is Moore v. Harper, the case in which it is argued that the Constitution somehow gives state legislators vast power to set federal election rules with no checks and balances from state courts, state constitutions, governors, even voters. A crackpot idea. Chaos. At the argument it was clear that even the conservative justices had little appetite to embrace this notion in its most dangerous form.

Now, the North Carolina Supreme Court, which had blocked an egregious gerrymander, has turned around and blessed it months later — after conservatives seized control of the court. So SCOTUS *may* declare the whole thing moot. We will see. Read more about Moore v. Harper here, and the independent state legislature theory here.

How will the politics of the Supreme Court play out? Are the democrats handling it right?

We are starting to see a backlash to the Court. In the midterm, Democrats did better than any party in control of the White House in decades, thanks to Dobbs and concern about democracy. Voters rejected election deniers who pushed Trump’s “Big Lie” of a stolen election. An even bigger “tell”: the recent vote in the Wisconsin Supreme Court election. The Badger State is more or less evenly divided. But the liberal candidate won by 11 points, a really big swing. Political scientists will tell you if that is repeated around the country, that’s a realignment.

I hope the Democrats speak out more directly about the Court. For years, support for the Court was higher among liberals than among conservatives. Republicans knew that the Court and the Constitution mattered, and that regular people cared a lot. Democrats often avoided it all. Even after last June’s rulings, President Biden did not take on the lurch to the right by the justices. Other presidents would have handled it differently, as my friend Jeff Shesol powerfully argued.

Well, what can we do to fix this broken system? The current panel of justices are in for life. Even with the obvious improprieties and backroom dealings, there are no legal means or the political will to remove justices that appear to operate above the law. So, how can this be fixed under the current circumstances?

We should reform the Court. That starts with eighteen-year term limits and also regular appointments (so each president gets to nominate someone every 2 years). That might drain some of the poison out of the confirmation process. Also a binding ethics code. And Congress has the power to investigate corruption when it appears in the other branches – when done prudently and with respect to separation of powers. Serious investigations, not trolling for clicks.

I read somewhere that the main goal of Trump's handlers was to put conservatives on the court in the hopes of striking down liberal laws. Is there any truth to this?

Well said.

Which is better - term limits or stacking the court. Or both? I think that stacking the court and seeing up a system for randomly selecting a smaller number of justices to hear individual cases would give fairer outcomes.

In my book, and at the Brennan Center, we’re pushing for an eighteen year term for justices. Nobody should have that much public power for too long. That’s the insight George Washington had, for example, when he limited himself to two terms. Nearly every state supreme court has term limits or a retirement age, and so do the constitutional courts in other countries. This could be done by constitutional amendment, for sure, and we think it could be done by statute as well. Term limits are very popular, according to polls, with conservatives as well as liberals. I think they will happen.

As for court expansion, there’s no question that it’s legal. Congress has expanded and contracted the size of the court before. I do think there’s a real risk of a big and unexpected political pushback.

As a younger person, how are we expected to take the rule of law seriously when the Supreme Court is being paid off by billionaires? How can the court expect any attorney to look at them with respect or admiration?

The Supreme Court has power only because we the people give it power. Credibility must be earned. Trust in the Court has plummeted to its lowest level ever recorded, according to polls. Partly that’s because of extreme rulings like Dobbs (overturning Roe v. Wade) and Bruen, a radical Second Amendment ruling. Partly it’s the revelations about corruption. A right-wing billionaire has been subsidizing the lifestyle of Justice Thomas, even buying and renovating his mother’s home, all without public disclosure. Bottom line: SCOTUS needs to act like a court.

What can we do? I wrote a whole book about that! All throughout history, when the Court overreaches there can be a fierce backlash. Already we’re seeing elections turn on opposition to Dobbs and other extremism. I think this will be a core issue in 2024 and going forward.

The SCOTUS trust numbers look pretty strong when compared to Biden’s numbers, Congress’ numbers, or even worse our media’s numbers. I expect there is a stark partisan divide in the opinions about the SCOTUS. It seems like our trust deficit with our institutions continues to grow. Partisanship is only gojng to make that worse. How can we bring Americans back together?

Lots of institutions have low approval in this time of pandemic and polarization, true. None have had their public standing fall as fast as the Court, though. It’s a catastrophic collapse in public support.